T Nation

Alito to USSC


Tradesports had it right -- Bush is going to nominate Samuel Alito at 8 AM EST. I like the nomination, particularly because Alito is very strong on freedom of speech issues.

Here's a nice, informative profile from the SCOTUS weblog, which also gives some details on the opinions he has authored on the 3rd Circuit that will surely be discussed ad nauseum:


Brief biography
Judge Alito currently serves on the U.S. Court of Appeals for the Third Circuit. Prior to his nomination to the Third Circuit by President George H.W. Bush, he served as U.S. Attorney for the District of New Jersey (1987-1990), Deputy Assistant Attorney General (1985-1987), and Assistant to the Solicitor General (1981-1985).

Judge Alito was born in 1950 in Trenton NJ. He attended Princeton University and Yale Law School. He clerked for Judge Leonard I. Garth on the Third Circuit.

Useful weblinks
Access a profile of Judge Alito at Law.com: http://www.law.com/jsp/article.jsp?id=1046288236052

Notable opinions
Click on the link below

Notable opinions:

A majority opinion in ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999)( http://www.ca3.uscourts.gov/opinarch/985021.txt ), holding that the Establishment Clause was not violated by a city hall holiday display that contained a creche, a menorah, secular symbols of the season, and a banner proclaiming the city's dedication to diversity.

A majority opinion in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), holding that an Iranian woman seeking asylum could establish that she had a well founded fear of persecution in Iran if she could show that compliance with that country's "gender specific laws and repressive social norms," such as the requirement that women wear a veil in public, would be deeply abhorrent to her. Judge Alito also held that she could establish eligibility for asylum by showing that she would be persecuted because of gender, belief in feminism, or membership in a feminist group.

A majority opinion in Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001)( http://www.ca3.uscourts.gov/opinarch/994081.txt ), striking down as contrary to the First Amendment a public school district anti-harassment policy that extended to nonvulgar, non-school-sponsored speech that posed no realistic threat of substantial disruption of school work.

A majority opinion in Shore Regional High School Board of Education v. P.S., 381 F.3d 194 (3d Cir. 2004), holding that a school district did not provide a high school student with a free and appropriate public education, as required by the Individuals with Disabilities Education Act, when it failed to protect the student from bullying by fellow students who taunted the student based on his lack of athleticism and his perceived sexual orientation.

A majority opinion in Williams v. Price, 343 F.3d 223 (3d Cir. 2003), granting a writ of habeas corpus to an African-American state prisoner after state courts had refused to consider the testimony of a witness who stated that a juror had uttered derogatory remarks about African Americans during an encounter in the courthouse after the conclusion of the trial.

A dissenting opinion in Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991), arguing that a Pennsylvania that required women seeking abortions to inform their husbands should have been upheld. As Judge Alito reasoned, "[t]he Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems--such as economic constraints, future plans, or the husbands' previously expressed opposition--that may be obviated by discussion prior to the abortion." Chief Justice Rehnquist's dissent from the Supreme Court's 6-3 decision ( http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=505&invol=833 ) striking down the spousal notification provision of the law quoted Judge Alito's dissent and expressed support for Judge Alito's reasoning.

A dissenting opinion in Homar v. Gilbert, 89 F.3d 1009 (3d Cir. 1996)( http://www.ca3.uscourts.gov/opinarch/96a1353p.txt ) arguing that that a state university did not violate the procedural due process rights of a campus policeman when it suspended him without pay and without a prior hearing upon learning that he had been arrested and charged with drug offenses. The Supreme Court, which reversed and remanded the case on other grounds, agreed with Judge Alito's reasoning that no hearing was required prior to the suspension because the drug charges showed that the suspension was not baseless.

A dissenting opinion in Sheridan v. Dupont, 74 F.3d 1439 (3d Cir. 1996) (en banc) ( http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=3rd&navby=case&no=961252p )arguing that a plaintiff in a sex discrimination case should not inevitably be able to survive summary judgment simply by casting doubt on the employer's proffer of legitimate, nondiscriminatory reasons for the adverse employment decision.


Did anyone else find Bushie's introduction amusing?

"This guy...he's a JUDGE. A real actual JUDGE. Not like the last one. He's wrote papers--you can read 'em and tell what they guy thinks about stuff. He's even got the robes cuz he's a JUDGE!"


I do think Bush was emphasizing Alito's qualifications. Not a bad idea for at least two reasons: 1) He's got great credentials; and 2) One of the major problems with Miers was her lack therof.


Some thoughts on Alito's "abortion" jurisprudence, which will surely be the talking-point du jour (and for the whole month actually) on the left side of the aisle. You will hear "Planned Parenthood v Casey" tossed around so often in the near future you might even start to believe that all the folks with strong opinions have actually read it...

At any rate, here are a couple good posts on the subject, one looking at Alito's overall jurisprudence on "abortion" cases, and one looking at the notification statute that was at the heart of Casey.


ALITO & ABORTION [Shannen Coffin]
Kathryn already hit a little on this in Bench Memos: Several media outlets have already begun breathless reporting suggesting that Sam Alito is reflexively "anti-choice." When asked "what we know about Sam Alito" by Imus this morning, Andrea Mitchell immediately reported that "we know that he was a dissenting judge on the issue of spousal notification" in the case that became Planned Parenthood v. Casey. What she didn't report was that he also concurred in an opinion striking down New Jersey's partial birth abortion statute because he felt he had an obligation to follow the Supreme Court's decision in Carhart v. Stenberg, and that he held that a Clinton administration policy prohibiting states from adding additional conditions to Medicaid funding of abortions properly invalidated a Pennsylvania state law that required women seeking state-funded abortions in the cases of rape to report the crimes.

If media outlets are going to report on the Casey opinion, they need to review all of Alito's opinions that relate to the abortion issue. What they show, in toto, is a careful jurist committed to the rule of law, not a "pro-life" judge or a "pro-choice" judge.


ABORTION AND SPOUSAL NOTIFICATION: As several people point out, that's going to be an issue with regard to Alito. I'm not sure what I think about this issue, but looking at the Pennsylvania statute ( http://bench.nationalreview.com/archives/081283.asp ) I notice a lot of exceptions, one of which is this: "Her spouse is not the father of the child."

I'm not sure about Pennsylvania, but in many states her spouse -- even if he's not the father of the child -- would still be on the hook for child support ( http://www.reason.com/0211/co.cy.dad.shtml ). Likewise, if he didn't want children, but she disagreed, lied to him about birth control, and got pregnant. And he certainly couldn't force her to have an abortion if she did so, even if his desire not to have children was powerful, and explicitly expressed at the outset. (The usual response -- "he made his choice when he had sex without a condom" -- never comes up in discussions of women and abortion.)

So where's the husband's procreational autonomy? Did he give it up by getting married? And, if he did, is it unthinkable that when they get married women might give some of their autonomy up, too?

The problem here is that you can say "my body, my choice" -- but when you say, "my body, my choice but our responsibility," well, it loses some of its punch.

Somewhat related earlier post, here: http://instapundit.com/archives/019229.php


That was the joke.


BB, I'm not going to argue actual points of law, because--quite frankly--I have no background in it, nor have I done my research. (To pat myself on the back, when was the last time you heard someone on this board admit they didn't know something?)

But, i have to take exception to your statement about the left/abortion.

During the Miers debacle, wasn't the right screaming just as lou, if not louder, about her postition (or lack thereof) on abortion?


I think he is a great pick.

Too bad Rove did not have the sense to tell Bush to pick him before the Miers fiasco unfolded.

I disagree with Alito regarding his opinion on the Family and Medical Leave Act (FMLA). The SCOTUS overturned his ruling against the FMLA.

Alito believes that Congress did not have the 'right' to create the FMLA. Overturning congress is activism at its best.

LINK to case: http://laws.lp.findlaw.com/3rd/003140.html

We shall see.

Anyone think FMLA should be abolished?


Bush's comments were unprofessional and embarrassing.

I expect more out of WH speech writers.

I am not being sarcastic.


I that keeping congress in check is one of the main jobs of the court. I'm no legal scholar, but isn't it the duty of the court to make sure that Congress passes no laws that are a violation of the constitution?

Maybe that is splitting hairs - but I don't really think that qualifies as activism.


Do you think the FMLA is unconstitutional?

I only have one problem Alito. Uncle Ronnie's 11th commandment is irrelevant to me. I am not a right wing wacko nor am I a left wing wacko.

Alito was wrong for striking down the FMLA. The FMLA should apply to mothers as well as fathers, sons, brothers, sisters, etc.

Without the FMLA my uncle would not have been able to take care of my grand mother when she was dying of cancer this summer. According to Alito my uncle should have been fired.

Are you related to Alito?

You have my permission to disagree with Republicans. The FMLA should be untouchable. The GOP is suppose to be the champion of the family and that is why the SCOTUS will never over turn the FMLA. I know I do not have to explain that.


Does anyone else think Miers was a smokescreen and Bush really wanted this guy all along?

For some reason I feel like there is some manipulation going on here.


One man's activism is going to be another man's checks and balances. Ever since Marbury v. Madison its been part of the legacy of the USSC for judicial review of the acts of Congress if challenged... so unless we get into a discussion of Chief Justice John Marshall overstepping his bounds, I'm not sure how you can describe that as "activism".

The subjective debate becomes whether overturning an act of a legislature is activism or not. The bulk of the debate on judicial activism seems to be the accusation of courts/judges overturning laws without a strong constitutional argument for doing so.


Although your point is directed to RJ, I think that there are two different points here. Your argument is whether you think a law like FMLA is a good idea and Alito's position is whether Congress had the power to enact such a law in the first place. It's two entirely different things.


I agree, there was definitely a contingent on the right that was quite upset that Miers didn't have a position on abortion - or any opinions on anything, for that matter. The main critiques of her, though, that hurt the most, were those like George Will's, which centered around her lack of qualification for the USSC. I cannot recall, though I could be wrong, any conservative Senator opposing or critiquing Miers based upon her lack of a stated position on abortion -- we'll see if that's the case with liberal Senators and Alito.

Miers certainly didn't pull her nomination because of her lack of an opinion on the abortion issue -- though she may have in reaction to the positions she did take on affirmative action, and because the hearings would have focused on Constitutional law issues, with which she was seemingly not well versed. She didn't want to be embarassed, and I can't blame her.


That is a little bit of a stretch. I don't think Alito said corporations were not allowed to give leave, simply that Congress overstepped its bounds by forcing them to give leave.

I understand the leave can be required but the few cases of family leave at my workplace it looked like people were taking advantage of the system rather than using what it is really meant for, which is taking time off to take care of a family member that needs help.


I think it is a stupid feel-good law that puts undo burden on businesses. As for its constitutionality - I have already said that I am not a legal scholar. I don't know everything about the Act - so for me to comment on it's legality, or lack thereof, would be foolish.

I'm not sure what this has to do with anything. We are talking about FMLA - where do genetics come into play?

As a small business owner - I don't get the benefit of the FMLA. If I miss two months because of a sick relative - I forfeit my income stream for that amount of time. If I were to take the full 60 days off, my clients would go elsewhere for the services I was providing for them.

Before I was self-employed, my bosses all allowed me time off for my marraige, the births of my two children, and anytime someone got sick that required my attention. They didn't need the government to come in and mandate anything. I am against the act, regardless of party affiliation.

But this has little, if anything to do with Alito.


Interesting assessment of the politics of the Alito nomination by Stanley Kurtz of the Hoover Institute.

I think he's downplaying the successful filibuster a little too much -- I wouldn't consider it likely, but if one is forced to depend on the likes of Arlen Specter, I don't think anything can be considered "in the bag."

I will certainly say this: With Alito's record of service and opinions, I don't see how the "Gang of 14" could possibly agree that his nomination qualified as "extraordinary circumstances," so if the Democratic members of the Gang of 14 voted to filibuster, I think the Republicans would necessarily be honor bound for vote for the Constitutional option.


This is a winning political move. Alito is at least as qualified as Roberts, and his Casey opinion will not sustain a convincing filibuster. The Democrats seem trapped here. Reid has warned the president not to nominate Alito. And despite the narrow and non-substantive character of Alito?s dissent in Casey, the Dems will be forced by their groups to make abortion the issue. So if there is no filibuster, this is going to come off as a huge victory for the president.

On the other hand, a failed filibuster against this qualified a nominee will be an even bigger victory. A filibuster will inundate us with repetitive analyses of the Casey decision. But there is nothing in that decision that will carry a majority of the public against Alito. Conservatives will be infuriated by the attempted ?borking,? the Democrats will look obstructionist, and the filibuster will fail. If anything, that would be even better politically for the president and the Republicans.

The third, and least likely possibility, is a successful Democratic filibuster. That could only be the result of a successful borking, with major media malfeasance, and would make conservatives even madder. The result would be a gigantic election showdown with conservatives even more activated than liberals.

So every political outcome is positive. The downside is the possibility that a filibuster will hold up the larger legislative agenda. But I don?t think even moderate Republicans are politically endangered by this. They will break a filibuster and will not be punished. Moderate Democrats will be in more danger if they do filibuster. Again, I think this traps the Democrats between their own groups and the broader public. Big win for the president.


The thought had crossed my mind.

I looked at BostonB's link to the spousal notification law. It had so many exceptions that it really was more of a policy statement than a law. Here were the exceptions:

(a) SPOUSAL NOTICE REQUIRED. ? In order to further the Commonwealth's interest in promoting the integrity of the marital relationship and to protect a spouse's interests in having children within marriage and in protecting the prenatal life of that spouse's child, no physician shall perform an abortion on a married woman, except as provided in subsections (b) and (c), unless he or she has received a signed statement, which need not be notarized, from the woman upon whom the abortion is to be performed, that she has notified her spouse that she is about to undergo an abortion. The statement shall bear a notice that any false statement made therein is punishable by law.

(b) EXCEPTIONS. ? The statement certifying that the notice required by subsection (a) has been given need not be furnished where the woman provides the physician a signed statement certifying at least one of the following:

(1) Her spouse is not the father of the child.

(2) Her spouse, after diligent effort, could not be located.

(3) The pregnancy is a result of spousal sexual assault as described in section 3128 (relating to spousal sexual assault), which has been reported to a law enforcement agency having the requisite jurisdiction.

(4) The woman has reason to believe that the furnishing of notice to her spouse is likely to result in the infliction of bodily injury upon her by her spouse or by another individual.

Such statements need not be notarized, but shall bear a notice that any false statements made therein are punishable by law.

(c) MEDICAL EMERGENCY. ? The requirements of subsection (a) shall not apply in the case of a medical emergency.

I think these are all appropriate. The reality is that a couple that gets along will discuss these issues and a couple going through marital difficulties will not. A law isn't going to change that reality.


I may be mistaken, but the leave required under the FMLA does not have to be paid - it just requires that the employee have a job after 12 weeks.

Anyway, here is a summary of that FMLA opinion. As Kuz said, the opinion had nothing to do with whether the law was "good" or "bad" but whether Congress had the power to enact it. This is very much how Scalia thinks. I was reading up on Scalia the other day and he is not the ogre that many think he is. His opposition to Roe isn't that he thinks abortion is wrong, which I'm sure he does, but that the decision should be left to the states. If a state passed a law that allowed abortion for any reason whatsoever, Scalia would not overturn the law, even if he disagreed with it, because that would be an exercise of state power. Interestingly, Ruth Bader Ginsburg, who as a former ACLU lawyer is anything but conservative, has also criticized Roe because she felt that it would have been best for the abortion issue to have been resolve through the democratic process.

Plaintiff brought an action under the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C.S. ?? 2601-54, alleging that defendant employer, a state agency, improperly denied him leave and fired him while he was on approved, paid sick leave. Although a jury found in plaintiff's favor, the lower court granted judgment as a matter of law to defendant, holding that plaintiff's FMLA claim against defendant was barred by U.S. Const. amend. XI. Plaintiff appealed, and the court affirmed. Defendant was permitted to raise the immunity claim for the first time on appeal. Pennsylvania had sovereign immunity under Pa. Const. art. I, ? 11, and did not consent to suit. Congress clearly intended to abrogate states' immunity when it enacted the FMLA, and based its authority to do so on its power to enforce the Equal Protection Clause of U.S. Const. amend. XIV. Congress, however, failed to make any finding concerning the existence in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause. The FMLA provisions at issue were not a valid exercise of Congress's power.


How many employees do yo have?

If your company has less than 50 employees you are not required to follow the FMLA.